The President and legislation

 

Sir, – The recent concern about the workload of the President caused by a surge in Bills for signature focuses only on the final step in the legislative process, the tip of the iceberg, and misses the significant legal analysis required before this (“President raises concerns over volume of legislation received”, News, July 30th).

No commentator appears to appreciate the enormous effort which has to go into every piece of legislation even before it is laid before one of the Houses of the Oireachtas. Civil servants have to formulate a legislative scheme to ensure internal coherence and a workable administrative basis for the legislation.

This is then followed by the process of rigorous legal analysis and drafting in the Office of the Attorney, often under time pressure due the need to address urgent problems. The recent volume of Bills being submitted to the President represents an enormous effect by the Civil Service and the Office of the Attorney General to deal with the consequences of the Covid pandemic and the emerging needs of the economy and society.

The production of a Bill requires legal input to ensure consistency with the Constitution, but drafting must also ensure that the measure has internal coherence and does not conflict with other enactments in the statute book.

After 1937, it was only necessary to review legislation in the light of the Constitution and in that context Article 26 provides a mechanism for the President to summon the Council of State to consider if a Bill should be referred to the Supreme Court.

Today public-sector lawyers not only have to measure a Bill against the Constitution but must also consider the network of international commitments to which Ireland is committed, including in particular the European Convention on Human Rights.

Of even greater relevance for the process of legal vetting are the European Union treaties and the corpus of EU law which under Article 29.6 of the Constitution means that a legislative measure “necessitated by the obligations of membership of the European Union” will have the force of law in Ireland despite any conflict with a provision in the Constitution.

Article 26 has, very prudently, been resorted to rarely and given the speed with which the Supreme Court must consider a reference from the President, and that the arguments presented to the court will be based on an abstract and theoretical analysis, it is perhaps questionable whether Article 26 should even remain as part of the Constitution. – Yours, etc,

CHRISTOPHER O’TOOLE,

Dublin 8.